I. Interscholastic Athletics
A. Regulatory Framework for Interscholastic Athletics, p. 21
1. The National Federation of High Schools is made up of 50 individual state high school athletic and/or activities associations, with DC and a number of Canadian schools. Although local schools are given broad autonomy in determining what general policies should apply in their participation in interscholastic athletics, state associations play a significant role by providing a set of rules for the governance of interscholastic athletics within the state.
2. Rules of association — transfer from one to another, age, good conduct
3. Rules developed at institutional level – grooming and appearance – such rules are generally devised and applied by the institution
a. Devised and enforced by institution or a coach
b. Institutions sometimes can resolve an issue before its brought to the association, esp. if it involves a rule it promulgated and is enforcing
4. Local schools are given broad autonomy in determining what general policies should apply in their participation in sports, state associations play a significant role by providing a setoff rules of rthe governance of sports within the state.
B. State Actor, p. 24
1. Before a right can be asserted it must be established that the deprivation of the alleged right occurred as the result of state action.
2. Relevant Case: Brentwood – SCOTUS case (2001) –p. 24 Tenn. Athletic Assoc. is a state actor. Contrast with NCAA – Tarkanian which held that NCAA isn’t a state actor, but suggested that high school athletic associations are state actors….dictum “the situation would, of course, be different if the association’s membership consisted entirely of institutions located within the same state many of them public institutions created by the same sovereign.”
a. Trial court – state had delegated authority over sports to the Association, characterized the relationship between the association and its public school members as symbiotic, and emphasized the predominantly public character of the Association’s membership and leadership.
b. 6th Circ. Reversed but then Supreme Court said that 84% of it was made of lubc schools represented by their own officials acting in their official capacity to provide an integral element of secondary public schooling
i. Important factors to consider:
· Who are the Association’s rule-makers? (legislative council in Brentwood)
· Who handles administration (Board of control in Brentwood)
· how many of the members are private/public (84% in Brentwood)
· Who pays the Association’s staff (gave opportunity to join retirement system in Brentwood).
· Who votes on the members? (Limited under Association’s bylaws to principles, superintendents, public school administrators, assistant principals in Brentwood).
· Do they pay dues –* yes, but bulk of revenue was through games in Brentwood.)
· Also – allows kids to use sports as their phys ed. component
· What does the board do – provides standards, rules and regulations for interscholastic competition in the public schools of Tenn. (Brentwood)
a. But the official rule, as of 1996 said “recognizing the value of participation in interscholastic athletics and the role of the Association in coordinating interscholastic competition while authorized the association in coordinating interscholastic athletics competitions.
ii. Top-down and bottom- up analysis
· Bottom up example from Brentwood, p. 27: 84% of membership, Association is an organization of public schools represented by their officials acting in their official capacity to provide an integral element of secondary public schooling. Only 16% prevents this entwinement from being total and their identities indistinguishable.
· Top – Down – State board members are assigned ex officio to serve as members of the board of control and legislative council, and the Associations ministerial employees are treated as state employees to the extent they have the opportunity to get in the retirement plan.
c. Scalia, Thomas, and Kennedy dissented – TSAA isn’t a government entity created and controlled by the government for the purposes of fulfilling a government objective
i. No symbiotic relationship b/w state and TSSAA (said it’s like a contractor performing services for the gov’t)/
d. Michigan High School Athletic Association –state actor
3. Other Implications Arising out of being a state actor
a. Antitrust immunity for regulation of interscholastic activities
b. Qualified tort immunity available to state government and officers BUT sometimes not. (p. 30).
C. Deference To the Association
1. Could be because historically the courts have deferred to the leaders of educational institutions on matters of educational policy on the view that they are experts at making such judgments. Second, courts have long recognized a right of private association to set their own rules of conduct for members…finally…the cases demonstrate a judicial deference unique to the NCAA to its member schools as the recognized regulators of amateur athletic policy…
2. Could be because the power to make rules and regulations –don’t want to be sanctioned for their own rules – might make them make less rules.
3. Example – Indiana rule: “as to voluntary associations is that the courts will not ordinarily interfere to control the administration of their constitutions or by-laws or to enforce rights springing there from.
4. A student (almost always ) has no constitutional right to participate in sports.
5. Courts can review a right a private association gievs
D. Ability to get to Court & What Court Will hear
1. First – the aggrieved party will be expected to seek recourse first through the admin process (exhaust admin remedies before turning to the courts)
a. For example –state athletic associations have processes in place that indicate how an aggrieved party is to proceed in raising an issue at the associational level. Typically, however, a party begins by raiding the issue at the institutional level. On occasion, particularly if it involves a rule promulgated and enforced by the institution may the institution itself resolve the issue. However, if the rule is one enforced at the association level, will have to seek recourse at that level.
b. Associations and institutions expected to give due process – adequate notice and fair hearing—if a liberty or property interest is implicated.
2. Administrative Hearings
a. A party will usually be expected to exhaust these remedies before turning to the courts
b. When a board has made final findings a court may not look beyond those findings to question the integrity of decision-makers or the decision making process without a strong showing of bad faith or improper behavior
3. Court Issues –
a. First looks at jurisdictional issues
b. Interpretive issues (examining rules of school districts and athletic associations and state and federal statutes as well as the cases that aid n determining the meaning and application of those rules
c. The federal constitutional provisions are applicable and will prevail over conflicting state constitutional provisions in instances where the state constitutional protection is equal to or less protection than the federal. However, if the state constitution gives more protection then it may apply because it doesn’t limit the force of the federal constitutional provisions.
E. Judicial Review
1. Standards of review
a. Is it proper without first establishing a civil pr property right (p. 33)
i. Avant got around it through precedent which stated students have no constitutional right to participate in interscholastic athletics, and thus found the trial court to be w.out jurisdiction.
2. Arbitrary and capricious standard – substantive evidence of probative
istrict. PRINCIPAL DID INVESTIGATE—talked to ∏ and did it quickly Court makes no judgment as to whether a preponderance of the evidence, clear and convincing evidence, or evidence beyond a reasonable doubt supports these charges. The period of ineligibility meant he couldn’t participate in sectional, district or state wrestling tournament.
i. Procedure Event happened 1/25, Letter 2/4, Appeal 2/5 to the superintendent who sent letter affirming principals decision dated 2/9, 2/10 requested closed hearing, Began 2/12 and ended late at night, Board deliberated on 2/12 and 2/13 before reaching a decision affirming administrations decision It became clear at the Court’s Feb 13 hearing that the Court couldn’t fairly consider all the evidence in time to fully resolve the manner before weigh ins. Gave TRO (bc increased harm); complaint was filed within 3 hours of the decision ∏ asserts he has been denied 5 constitutional rights, 13—weighing for the beginning of the process—VERY successful, hoping to get another state championship—two day TRO isn’t going to do any good if he wants to be state champion. TRO is less than a week. JUDGE CAN grant this ex parte. Judge insists hearing is set and ∆ be present at hearing. Not a whole trial: just a hearing
ii. On the 16th Arguments: 14th amendment to EP (Rejected bc hasn’t asserted that because of race, religion, etc he has been discriminated against nor did he prove that wrestling was a fundamental right), Sub. Due process, Proc. Due process, 8th amendment right free from cruel and unusual punishment (Rejected because school discipline doesn’t implicate 8th amendment concerns held in graham v Wright), 6th amendment right to counsel (Rejected constitution limits this right to all criminal prosecutions).
iii. Issue ∆ trying to get TRO or preliminary injunction. Were his sub or proc. Due process rights violated? To analyze this court must determine whether the plaintiff is being deprived of liberty or property by the defendant doesn’t depend on the seriousness of the loss of the ∏; look at the nature of the interest at stake Majority of Cts have found that interscholastic or collegial athletics athletes have no legitimate entitlement to participate. Once awarded a college scholarship may give rise to a property interest in its continuation If any property interest of the ∏ is involved in this case it’s a property right created by the ∆’s own police and ad min rules. ∏ wasn’t deprived of this right because Basis for ∆s action was a permissible basis for sanction.
· Procedures in ad min rules were followed Sanction chosen was authorized in 9.14 of board policy Due process clause doesn’t require courtroom standards of evidence to be used in administrative hearings.
Substantive due process. Plaintiff can show that his right to substantive due process was denied if the board’s decision was arbitrary or capricious OR if it violated one of the substantive. When a board has made final findings a court may not look beyond those findings to question the integrity of decision-makers or the decision making process without a strong showing of bad faith or improper behavior.